1973 (12) TMI 6 - HC - Income Tax

This appeal is directed against an order of the District Judge by which the petition of the appellant under section 153A(1)(f) of the Companies Act, 1913, seeking an order providing for payment of certain tax outstandings of respondent No. 2 by respondent No. 1 and/or respondent No. 3 was dismissed on the grounds that the petition was not only not maintainable but was also barred by time and the question that this appeal raises are as to the true construction of the provisions of section 153A(1)(f) of the Act of 1913 and its corresponding provision in the Act of 1956 as also of the provisions of article 137 of the Limitation Act, 1963 - Whether application for discharge of tax liability of transferor-company under a scheme of amalgamation by transferee company and/or liquidator of transferor-company would be maintainable

Issues Involved:
1. Jurisdiction of the court to entertain the petition.
2. Whether the petition was within the time limit.
3. Effect of the dismissal of two previous applications on the current petition.

Detailed Analysis:

1. Jurisdiction of the Court to Entertain the Petition:
The primary issue was whether the petition under section 153A(1)(f) of the Companies Act, 1913, read with section 647 of the Companies Act, 1956, was maintainable. The appellant argued that the terms "to secure that the reconstruction or amalgamation shall be fully and effectively carried out" in section 153A(1)(f) and its corresponding provision in the Act of 1956 included directions to the transferee-company to discharge the liabilities of the transferor-company. The respondents contended that these provisions were intended for incidental, consequential, and supplemental matters necessary to give effect to the amalgamation, and did not extend to directing the transferee-company to pay the creditors of the transferor-company unless the scheme specifically provided for it.

The court held that the respondents' contention must prevail. The court concluded that the liability of the transferee-company to pay the creditors of the transferor-company was not a step necessary to complete the process of amalgamation but a consequence of it. Therefore, the petition was not maintainable under section 153A(1)(f) of the Act of 1913 or its corresponding provision in the Act of 1956.

2. Whether the Petition was Within the Time Limit:
The second issue was whether the petition was barred by time under article 137 of the Limitation Act, 1963. The appellant argued that the petition was not within the scope of article 137, and thus no period of limitation was prescribed for it under either the Limitation Act of 1963 or the Limitation Act of 1908. The respondents relied on a decision of the Bombay High Court in the case of Employees' State Insurance Corporation v. Bharat Barrel and Drum Manufacturing Co. P. Ltd., which supported the view that the petition was time-barred.

The court examined the history and scope of article 137, noting that it was broader than article 181 of the Limitation Act, 1908, and included applications under special statutes. However, the Supreme Court's decision in Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli, held that article 137 did not extend to applications under special statutes. Therefore, the court concluded that article 137 did not apply to the present petition, and the learned district judge was wrong in concluding that the petition was barred by time.

3. Effect of the Dismissal of Two Previous Applications on the Current Petition:
The third issue was whether the dismissal of two previous applications in default debarred the institution of the current petition. The learned district judge found in favor of the appellant on this issue, concluding that the dismissal of the earlier petitions did not bar the current petition.

The respondents conceded this point and did not challenge the finding of the learned district judge on this issue. Therefore, this issue did not survive for further consideration.

Conclusion:
The court dismissed the appeal, holding that the petition was not maintainable under section 153A(1)(f) of the Companies Act, 1913, or its corresponding provision in the Act of 1956. The court also concluded that article 137 of the Limitation Act, 1963, did not apply to the petition, and thus it was not barred by time. However, the appeal was dismissed with no costs awarded.

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